Hewitt and Fenn and Anor

[2015] FamCA 1051

FAMILY COURT OF AUSTRALIA

HEWITT & FENN & ANOR [2015] FamCA 1051

FAMILY LAW – CHILDREN – Where the paternal grandmother intervened as a party – Best Interests – Where the child has a meaningful relationship with the mother – Where the child has warm and loving relationships with both the father and paternal grandparents – Where the mother and her husband do not pose a risk of harm to the child, either through his subjection to abuse or his exposure to family violence – Where the father poses a potent risk of psychological harm to the child through his exposure of the child to his violent conduct – Where the paternal grandparents would not be able to satisfactorily supervise the child with the father – Where the child’s tension and anxiety will probably result in his resistance to spending any time with the mother if he remains resident with the paternal family – Child to live with the mother – Where the mother would most probably experience impairment to her parental capacity if she had to comply with orders requiring her to ensure the child’s visits with the father or paternal grandparents – Where the mother, as an incident of her exclusive parental responsibility for the child, will decide if and how the child will spend time with the father or paternal grandparents in the future – Where the father and paternal grandmother are permitted to send occasional written correspondence to the child, but are otherwise restrained from approaching the mother’s home or the child’s school

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father has engaged in family violence – Where the parents cannot communicate effectively – Where the allocation of parental responsibility is tied to the question of with whom the child should live – Mother to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B

A & A (1998) 22 Fam LR 756
Aldridge & Keaton (2009) FLC 93-421
H & K [2001] FamCA 687
H & R [2006] FamCA 878
M v M (1988) 166 CLR 69
Maldera v Orbel [2014] FamCAFC 135
Marriage of B & B (1993) FLC 92-357
Marriage of Bieganski (1993) 16 Fam LR
Marriage of Sedgley (1995) 19 Fam LR 363
Moose v Moose (2008) FLC 93-375
Re Andrew (1996) 20 Fam LR 538
V & V [2001] FamCA 78
Valentine & Lacerra & Anor [2013] FamCAFC 53

APPLICANT: Mr Hewitt

RESPONDENT: Ms Fenn

INTERVENER: Ms Hewitt

INDEPENDENT CHILDREN’S LAWYER: Ms Garrick, Brennan Garrick Lawyers

FILE NUMBER: PAC 4733 of 2011

DATE DELIVERED: 27 November 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 16, 17 & 18 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INTERVENER: Not Applicable

SOLICITOR FOR THE INTERVENER: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Garrick, Brennan Garrick Lawyers

Orders

1. All former parenting orders relating to the child B, born … 2005, (“the child”) are discharged.

2. The respondent mother (“the mother”) shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Pursuant to s 68B of the Family Law Act, the applicant father (“the father”) and the intervener paternal grandmother (“the paternal grandmother”) are restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any school attended by the child.

5. Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father and paternal grandmother in the following manner:

   (a)By the father and paternal grandmother being able to send letters, cards, and/or gifts to the child on or about dates proximate to his birthday and Christmas Day; and

   (b)By the mother promptly sending to the paternal grandmother:

   (i)Written acknowledgement of receipt of the written communication from the father and/or paternal grandmother; and

   (ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father or paternal grandmother.

6. For the purposes of implementation of Order 5 hereof:

   (a)The mother shall, within 7 days hereof, notify the paternal grandmother in writing of the postal address to which the father and paternal grandmother may send written communication; and

   (b)The paternal grandmother shall thereafter keep the mother informed in writing of the address to which mail directed to her may be sent.

7. The mother shall:

   (a)Notify the paternal grandmother of the school at which the child is enrolled, within 14 days of the date of these orders; and

   (b)Authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

8. Leave is granted to the mother to furnish a copy of these orders to the principal of any school attended by the child.

9. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

10. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

11. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hewitt & Fenn & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: PAC 4733 of 2011

Mr Hewitt

Applicant

And

Ms Fenn

Respondent

And

Ms Hewitt

Intervenor

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings involved consideration of the orders best suited to the care of a boy who is about to attain 10 years of age (“the child”).

2. He is the only son of the applicant father (“the father”) and respondent mother (“the mother”). He lived primarily with the mother until he was eight years of age, but he has lived with his father and the paternal grandparents for the last eighteen months.

3. The paternal grandmother intervened as a party in the proceedings and an Independent Children’s Lawyer was appointed to represent the child’s interests.

4. At issue was whether the child should live with the mother or paternal grandmother, what interaction he should have with the parties with whom he does not live, and who should hold parental responsibility for him.

History

1. The mother and father had a brief domestic relationship between 2005 and 2006. The child was born in 2005.

2. Former litigation between the parents was resolved consensually in December 2012 when orders were made by the Federal Magistrates Court (as the Federal Circuit Court then was), making provision for the parents to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial amounts of time with the father.

3. Those orders worked quite well until the father detained the child in his care in March 2014, alleging the child was at risk of physical harm through abuse in the mother’s household. The father commenced the current proceedings on

   
   

   1 April 2014, seeking to reverse the child’s residence and eliminate the mother from the child’s life, which proposal was strongly resisted by the mother.

4. The Federal Circuit Court made interim parenting orders in May 2014 which suspended the orders previously made in December 2012, provided for the child to live with the father, and provided for the child to spend one day per fortnight with the mother, subject to an injunction restraining the mother from allowing the child to come into contact with her partner (“Mr C”), who is now her husband.

5. Those orders were replaced by more interim orders made with the parties’ consent in August 2014. The fresh orders provided for the parties to have equal shared parental responsibility for the child, for the child to live with the father, and for the child to spend each alternate weekend and half of school holiday periods with the mother. The former injunction pertaining to Mr C was abandoned.

6. The Family Consultant appointed in the proceedings prepared a Family Report in April 2015. It contained robust recommendations for the child’s return to live with the mother and the absence of future contact between the child and any member of the paternal family.

7. Orders were then made by the Federal Circuit Court in May 2015 requesting the Secretary of the NSW Department of Family and Community Services (“the Department”) to intervene in the proceedings, releasing the Family Report to only the Independent Children’s Lawyer and the Department, and transferring the proceedings to this Court. The Department chose not to intervene in the proceedings.

8. Subsequently, with the consent of the parents and the Independent Children’s Lawyer, the paternal grandmother was granted leave to intervene as a party and the proceedings progressed to trial in November 2015.

Proposals

1. The father abandoned the proposal for the child set out in his Initiating Application filed on 1 April 2014. Instead, he adopted the proposal of the paternal grandmother, save for his desire to share equally with the paternal grandmother in parental responsibility for the child.[1]

   [1] Father’s affidavit, para 9

2. The paternal grandmother’s proposal was set out in the Response she filed on 24 July 2015. She proposed that the child live with her and that she have sole parental responsibility for him, though in the Case Outline she filed just prior to trial she indicated her willingness to share parental responsibility for the child with either or both of the mother and father. She proposed that the child spend time with each parent, amounting to one weekend per month during school terms and for 10 days in each Summer school holiday. Otherwise, she would decide whether the child should spend more time with either parent.

3. The mother pressed for the orders set out in her Amended Response filed on

   
   

   6 November 2015. She proposed that the child live with her and that she have sole parental responsibility for him. She furthermore proposed that the child spend no time at all with either the father or paternal grandparents.

4. The Independent Children’s Lawyer did not reveal her proposal until the closure of the evidence, just prior to commencement of final submissions, when a minute of orders was tendered.[2] Her proposal was for the child to live with the mother, for the mother to have sole parental responsibility for him, and for the child to have no contact of any sort with either the father or paternal grandparents other than by way of the provision of gifts at Christmas and on the child’s birthday.

   [2] Exhibit ICL7

Evidence

1. The father relied upon his affidavit filed on 28 October 2015.

2. The mother relied upon her affidavit filed on 6 November 2015 and the affidavit of Mr C filed on 10 April 2014.

3. The paternal grandmother relied upon the affidavits filed by her and the paternal grandfather on 15 October 2015.

4. The parties and the Independent Children’s Lawyer also relied upon the Family Report dated 13 April 2015.

5. The Family Consultant recommended that the Family Report be read in conjunction with another Family Report prepared by another Family Consultant in other litigation concerning another child of the father and another of his former partners.[3] That recommendation was raised with the parties and the Independent Children’s Lawyer before the trial commenced and it was agreed the other Family Report should not form part of the evidence in these proceedings. Although that document was annexed to the Family Report, it was ignored as evidence.

   [3] Family Report, para 12

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. The evidence proves the child has a meaningful relationship with the mother from which he does, and should, derive considerable benefit.

2. Following the child’s detention by the father in March 2014 he was denied any contact with the mother for about six weeks. He was re-introduced to her in May 2014 in an observation session with the Family Consultant, who observed the child’s delight. The child expressed a desire to return home with the mother.[4] In a subsequent interview with the Family Consultant in April 2015, the child told her he enjoyed spending time with the mother and Mr C and she observed him to be comfortable, relaxed and loving with them.[5]

   [4] Family Report, paras 27-28

   [5] Family Report, paras 82, 93, 133

3. The promotion of the child’s relationship with the mother is an important feature of the evidence, particularly since the mother has not had the fortitude to allow the child to spend time with her pursuant to existing interim orders since September 2015. The reasons for that are discussed in more detail under

   
   

   s 60CC(3) of the Act, but at this juncture it needs to be recognised that if the child lives with the paternal grandmother, he may lose the important relationship he enjoys with the mother.

4. The child was observed by the Family Consultant to have a warm and loving relationship with the father[6] and the mother realises the child idolises him.[7] The child derives benefit from the relationship he enjoys with the father, but the prominent issue to emerge in these proceedings was whether the need for the child’s protection from the risk of harm posed by the father outweighs the importance of their retention of a relationship. His protection from harm is a more important consideration (s 60CC(2A)).

   [6] Family Report, para 91

   [7] Family Report, para 71

5. Given the distillation of the dispute over the child’s residence to be a contest between only the mother and paternal grandmother, the nature of the child’s relationship with the paternal grandmother is also an important feature of the evidence, even though more properly considered under s 60CC(3)(b)(ii) rather than s 60CC(2)(a) of the Act.

6. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to grandparents (see Aldridge & Keaton (2009) FLC 93-421 at [44]-[48], [65], [74], [109]-[112], [119]). Irrespective, the Act does not import any presumption in favour of parents over grandparents in the determination of proper parenting orders for a child (see Maldera v Orbel [2014] FamCAFC 135 at [79]-[81]; Valentine & Lacerra [2013] FamCAFC 53 at [42]-[43]; Aldridge & Keaton at [59]-[61], [75]-[81], [83]). The child enjoys a warm and loving relationship with the paternal grandparents.[8]

   [8] Family Report, para 91

Section 60CC(2)(b)

1. The evidence adduced in these proceedings addressed two quite separate risks of harm allegedly faced by the child.

2. The first was the risk of the child’s harm through subjection to physical abuse by the mother and/or Mr C and his exposure to family violence perpetrated between them.

3. The second was the risk of the child’s harm through subjection or exposure to family violence perpetrated by the father, from which neither the father nor the paternal grandparents were likely to protect him.

Risk of harm allegedly posed by the mother and Mr C

1. The father originally detained the child in his care in March 2014, contrary to the orders made in December 2012, because the child alleged he was physically abused by the mother and Mr C.[9]

   [9] Family Report, para 20

2. These proceedings were conducted on the basis the child actually made such allegations to the father and the doctor to whom the father took the child for examination. The allegations were reported to the Department and the police, but neither the mother nor Mr C were ever prosecuted. The allegations were not substantiated.

3. Although an apprehended violence order was initially obtained by police against Mr C for the child’s protection, Mr C strenuously denied any allegation of abuse and, in the face of his defence of the application for the apprehended violence order, no evidence was eventually offered against him and the application was dismissed. The mother similarly denied any abuse of the child and corroborated Mr C’s denial of any abuse.

4. At an early stage of the trial in these proceedings the father conceded the statements of young children, like the child, are not always literally true and should be evaluated with some caution. That is undoubtedly correct and is especially important for present purposes for four good reasons.

5. First, one of the allegations made by the child about his abuse was certainly false. Specifically, it was alleged he was involved in an incident of family violence between the mother and Mr C at a specific time on an exact date, which resulted in him being physically abused, but Mr C gave uncontradicted evidence that he was not even present in the home at the time.[10] The anomaly could hardly be attributed simply to an error about the date, because the incident allegedly occurred merely days before the report was made about it to the police. Most probably the incident was a fabrication, or at least a gross embellishment, which raises serious doubts about the integrity of the child’s other similar allegations.

   [10] Mr C’s affidavit, paras 20-24, Annexure A; Family Report, para 24

1. Second, the child’s statements were made in his certain knowledge of high conflict between his parents, so he was probably attuned to the advantage of making disparaging comments about one in the household of the other.

2. Third, the child’s allegations about the mother and Mr C were not repeated to the police or Departmental staff, who bear responsibility for impartial investigation of such complaints. The child made the allegations to the doctor to whom he was taken for examination, but that was in the father’s presence, where he would likely have felt an expectation of repetition. The child also made a diluted allegation to the Family Consultant when first introduced to her in May 2014, but the father took the child to that interview, having shortly before detained the child in his care, and the Family Consultant curiously detected an unusually strong affinity between the child and father after such a short period of residence together. The available inference is that the child was conscious of the desirability of his expression and demonstration of support for the father in the contest with the mother. The Family Consultant said, and I accept, the child’s allegations of violence against the mother and Mr C could well be due to influence exerted by the father.[11]

   [11] Family Report, para 133

3. Fourth, the child’s demeanour with the mother and Mr C, as observed several times by the Family Consultant, was wholly inconsistent with any fear or apprehension of his physical abuse by them.

4. The father implicitly accepted the child’s allegations against the mother and

   
   

   Mr C were sapped of strength. In August 2014, only several months after the allegations were made, the father consented to fresh interim parenting orders that enabled the child to spend unsupervised time with the mother and the abandonment of the injunction formerly preventing any contact between the child and Mr C. The father would not have agreed to orders in those terms if he genuinely believed there was still a real chance either the mother or

   
   

   Mr C would physically abuse the child. Even now, the father endorses the orders proposed by the paternal grandmother, providing for the child to spend unsupervised time with the mother and Mr C on one weekend each month and for more than a week every Summer school vacation.

5. The father’s stubborn insistence, expressed to both the Family Consultant[12] and in final submissions, that he still had good cause to be concerned about the child’s safety in the mother’s care was either disingenuous or was evidence of his limited insight as a parent. He overlooked the concession he made to the effect that statements of young children, particularly when embroiled in family conflict, should not be accepted as literally true without careful consideration.

   [12] Family Report, para 52

6. The evidence does not support any finding that either the mother or Mr C poses a risk of harm to the child, either through his subjection to abuse or his exposure to family violence committed between them.

   Risk of harm allegedly posed by the father and paternal grandparents

7. The evidence adduced in these proceedings formed a grotesque history of the father’s commission of family violence against many domestic partners, even though his prosecution and conviction for such violent conduct was relatively rare. As was explained to the father, although an absence of conviction leaves his presumption of innocence intact in relation to the underlying allegation, the presumption of innocence is not an impediment to factual findings made according to the civil standard of proof in these proceedings about his past misconduct, nor to the formation of any conclusions about the risk of harm confronting the child (see M v M (1988) 166 CLR 69).

8. As the Family Consultant summarised,[13] the relationship between the parents was characterised by the father’s violent conduct towards the mother, often in the presence of the child. The family were well known to the police and the Department for that reason, though little was seemingly done to avert the problem.

   [13] Family Report, paras 1, 3

9. The father’s violent domination of his partners was a common component of his romantic relationships. There was a relatively clear pattern of his choking, sexual abuse, and threats to kill as the means of coercive control of his partners.[14]

   [14] Family Report, paras 8, 12, 98, 99, 103, 109

10. After analysis of the available evidence, the Family Consultant reached the following conclusions:[15]

    …the risk to the mother and child as posed by the father is extremely high and it is suggested that immediate steps should be taken to reduce that risk. There is a considerable risk that the child will be exposed to future family violence in the father’s care and that the level of violence may potentially be lethal.

    …The fact that the father appears to have been extremely violent to partners during pregnancy and that he routinely chokes or attempts to strangle partners, especially during sex, should be ringing alarm bells. This is a “red flag” for future serious abuse and fatality.

    …At the current time the Family Consultant has serious concerns about the risks facing the child in the father’s care.

    …In summary, the risks to the child in the father’s household at this time are considered unacceptable and it is strongly suggested that consideration is given to an immediate change of residency.

    (emphasis added)

    [15] Family Report, paras 128, 129, 132, 140

11. I accept the validity of those bold and shocking opinions, which were borne out by the whole of the evidence in aggregation.

12. Police records note allegations by the father’s former girlfriends that he slapped one and locked her in a shed in 2001 and deliberately damaged another’s car with a key after an argument in 2002.[16]

    [16] Family Report, para 120; Exhibit ICL1 (page 25)

13. In 2005, when the mother was pregnant with the child, the mother alleged to police that the father beat her and dragged her down some stairs. Bruises and red marks on her skin, consistent with such assault, were observed by the police. The mother told police the father previously threatened to kill her and choked her to the point the blood vessels in her eyes ruptured.[17]

    [17] Family Report, para 99

14. Upon final separation, the mother sought out sexual assault and domestic violence counselling,[18] which she would not likely have done unless she genuinely felt the need for such assistance.

    [18] Family Report, para 4

15. In 2008, more than two years after the parties’ final separation, the father smashed down a door to gain access to a house in which the mother was taking refuge with a relative so he could talk to her. The police were called. They charged the father with “trespass” and “malicious damage” and took him to a hospital mental health unit on account of his suicidal ideation.[19]

    [19] Family Report, paras 100, 124; Exhibit ICL1 (page 42); Exhibit ICL3

16. Two years later, in 2010, the father violently sexually assaulted the mother in a railway station carpark. The mother reported the attack to police, was medically examined, and forensic evidence of the assault obtained. The bruising injuries to the mother’s arms and legs, consistent with her forceful restraint by the father, were verified by police. The father’s denial of the allegation did not deter the police from proffering charges against him. Although charged with the assault, the prosecution against the father was discontinued when the mother elected not to proceed. Nevertheless, an apprehended violence order was made against the father for the mother’s protection for two years.[20] The father’s alleged breaches of that order were not prosecuted.[21]

    [20] Family Report, paras 2, 104, 126

    [21] Family Report, para 6

17. At the time of that incident in 2010, there had been 21 previous reports of the father’s domestic abuse of the mother. The police were apparently willing to press charges, but the mother could not conjure the emotional fortitude to assist his prosecution.[22]

    [22] Family Report, para 105

18. Few of the women who have alleged their assault by the father have followed through on their complaints by giving evidence against him, seemingly because they considered him to be dangerous, were intimidated by him, and were fearful of his reprisals. They preferred to placate him.[23]

    [23] Family Report, paras 2, 113, 121

19. In late 2010, another former partner of the father, Ms D, alleged to police she was assaulted by him. The police observed her injuries, which included bruising, grazes, and a cut. The father denied he inflicted those injuries upon her and contended she broke her nose when playing with his large dog. While Ms D was at the police station making her complaint the police witnessed her receipt of a telephone call from the father and heard his verbal aggression.[24] I do not accept the father’s denial of making that telephone call, but the charges proffered against him were not pursued.[25]

    [24] Exhibit ICL1 (pages 20-24)

    [25] Exhibit ICL1 (page 45 x 2)

20. In 2013, the father was involved in an altercation with his then partner,

    
    

    Ms E. She sustained a punctured lung and fractured ribs in the altercation, for which she needed helicopter evacuation to a regional hospital for proper treatment. She alleged the father assaulted her, but he alleged she accidentally fell down some stairs. The incident caused them to separate, which eventuality is more consistent with Ms E’s allegation of her serious assault by the father than with her sustaining the injuries accidentally. The father was convicted of “assault occasioning actual bodily harm”, for which he received a suspended sentence.[26] He maintained he was wrongly convicted in his absence and intended making an application to the court to revive his defence of the charges, but that did not eventuate. The conviction remains undisturbed.

    [26] Family Report, paras 8, 17, 103; Exhibit ICL1 (pages 14-17, 46); Exhibit ICL2

21. Later in 2013, the father assaulted his former partner, Ms F,[27] even though she was protected from him by an apprehended violence order made some months earlier for other assault allegations she made against him.[28] Although the Family Consultant believed he was charged with, and later convicted of, her assault, no conviction was eventually recorded. Ms F did, however, make another allegation to police about the father’s attempted subornation of her evidence just prior to the conclusion of the prosecution in 2014.[29]

    [27] Exhibit ICL1 (pages 8-10)

    [28] Exhibit ICL1 (pages 11, 17-19)

    [29] Family Report, para 9; Exhibit ICL1 (pages 7, 28, 29, 47, 48)

22. Throughout 2013 the father consulted with his general practitioner. The doctor’s notes reveal the father complained of being “angry” and “irritable”. He was diagnosed with “major depression” and referred to a psychologist. The psychologist reported back to the doctor that the father had “constant thoughts of hurting people” and that he had “always been the aggressor”.[30] The Family Consultant, who had not previously read the psychologist’s report, said in cross-examination she was greatly concerned by its contents.

    [30] Exhibits ICL5, ICL6

23. The most recent incident of violence between the father and a domestic partner occurred in April 2014, not March 2014 as the Family Consultant mistakenly thought.[31] The father engaged in a violent confrontation with Ms G, which was witnessed by the paternal grandfather, the child, the father’s youngest child, and Ms G’s child. The police and an ambulance were summoned to the scene at the father’s home.[32] The father and paternal grandfather attributed blame for the incident exclusively to Ms G, alleging the father only acted in self-defence, but that version was not entirely consistent with the child’s guileless report of the incident to the Family Consultant. He described how the father tried to control Ms G, would not let her leave, pushed and pulled her, took a sledge hammer from her grasp, and restrained her on a chair. The child described the incident as “terrible”,[33] as indeed it must have been. The father conceded the child was traumatised by the incident and was still upset about it when he was interviewed by the Family Consultant a year later in April 2015.

    [31] Family Report, para 18

    [32] Family Report, paras 18, 54; Exhibit ICL4

    [33] Family Report, para 85

24. The Family Consultant gave evidence, both in the Family Report[34] and during cross-examination, about how the child’s undisputed behavioural problems and his diagnosed condition of ADHD are probably causally related to his “trauma and stress” due to his exposure to “high level serious family violence” committed by the father.

    [34] Family Report, para 4

25. The father’s tendency to violent solutions pervades his personal interaction with other people besides his romantic partners. He has engaged in vicious fights with neighbours and other unknown men in public places and the presence of young children has not been a deterrent.[35]

    [35] Family Report, para 109

26. The father’s denial of perpetration of any family violence on any partner at any time is plainly false,[36] because he was convicted for his assault on Ms E. The conviction is a decision in rem which is conclusive proof of his commission of the offence. However, the father’s evidence was not reliable for another reason. He admitted in cross-examination he had “exaggerated” his professional martial arts ability when speaking to his general practitioner. If he is prepared to deliberately distort the truth when it suits him, even in such solemn circumstances as the provision of an accurate history to his own doctor from whom he seeks medical assistance, his self-serving evidence when under challenge about alleged misconduct is susceptible to inaccuracy.

    [36] Family Report, page 4 (para b), paras 106, 120

27. The Family Consultant, who is a clinical psychologist, opined that the father met diagnostic criteria for Antisocial Personality Disorder, which causes “a pervasive pattern of disregard for and violation of the rights of others”, loss of empathy, arrogance, and lack of insight. Such qualities are inimical to competent parenting and, since the condition is very difficult to treat, the prospect of the father’s parenting capacity being measurably improved seems quite remote.[37] Of course, it is really immaterial whether the father is afflicted by that disorder. His behavioural pattern is the important consideration, not the label affixed to it. However, the father’s apparent fulfilment of the criteria for diagnosis with the disorder reinforces the Family Consultant’s doubt he can be successfully rehabilitated.

    [37] Family Report, paras 134-138

28. The evidence comfortably establishes the father poses a potent risk of psychological harm to the child through his exposure of the child to his violent conduct, chiefly directed to domestic partners, though also more generally. He is an undesirable role model to the child. The only way that risk could be satisfactorily ameliorated would be to ensure the child only ever visits the father under the supervision of trustworthy adults. There are, however, substantial impediments to the imposition of such indefinite supervision.

29. The long-term or indefinite supervision of time spent by a child with a parent is generally regarded as prone to failure because it is bound to eventually impinge upon the quality of the relationship between the child and parent (see Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368). The strictures of supervision ultimately lead a maturing child to wonder about the need for it: whether the parent is dangerous or deficient. It also inevitably frustrates the parent, who feels untrusted and confined in the activities that can be enjoyed with the child. That is especially so when the supervision is professionally provided at a commercial contact centre.

30. The paternal grandmother said in final submissions she would be prepared to permanently supervise the child and father when together, but that is not a satisfactory solution because she does not genuinely accept the need for such supervision. Aligned family members are generally not ideal supervisors (see Marriage of B & B (1993) FLC 92-357 at 79,780-79,781).

31. The paternal grandmother and paternal grandfather proved to be little more than apologists for the father. They consider him to be a competent parent and they were complicit in consolidating the child’s residence with the paternal family following his retention by the father.

32. The paternal grandfather told the father’s probation officer he did not believe the father was guilty of the assault on Ms E in 2013, for which he was convicted.[38] The paternal grandparents both informed the Family Consultant they were not concerned by the allegations of the father’s violent propensity and they highly regarded his parenting capacity.[39] They preferred to criticise the mother and the father’s other former domestic partners and deflect blame from him to them.[40] The paternal grandfather made similar remarks to the father’s probation officer.[41] The paternal grandmother denied making some of those statements attributed to her, but the Family Consultant prepared the Family Report shortly after the interview in reliance upon her contemporaneous notes, so the Family Report was more likely correct. The paternal grandmother conceded such statements, if made by her and the paternal grandfather, would demonstrate a lack of insight by them and a willingness to unjustifiably excuse the father’s appalling behaviour.

    [38] Exhibit ICL1 (page 29)

    [39] Family Report, para 64

    [40] Family Report, para 65

    [41] Exhibit ICL1 (page 29)

33. Although the paternal grandmother made an impassioned plea during her oral evidence about her freshly acquired insight into the seriousness of the father’s violent history, there is some doubt about the integrity of her evidence on that issue. She alleged in oral evidence she was almost entirely unaware of the father’s violent history until she read the documents produced on subpoena shortly before commencement of the trial, but that was not so. She was forced to concede in cross-examination she was alerted to some of the father’s violent history in her consultation in October 2013 with another Family Consultant appointed to report on the younger child of the father and Ms F, and additionally, the father’s history was thoroughly canvassed between the paternal grandmother and the Family Consultant in these proceedings at their meeting in April 2015, over six months before the trial.

34. Even if her acquisition of such knowledge about the father was so belated and even if her expressed concerns about the father were entirely genuine, her newly acquired alarm was not reflected in her final submissions or her ultimate proposal. She still pressed for the child to spend unsupervised time with the father for not less than one weekend each month and for more than a week in each Summer school vacation. Her expressed willingness to supervise the child with the father was little more than balm to sooth the irritating prospect the mother may be perceived as a better residential alternative than members of the paternal family.

35. The paternal grandmother played a much larger and controlling part in the family’s affairs than the role of neutral intermediary, as she tried to portray.[42] When the father originally detained the child he requested the paternal grandparents to live with him and help with the child’s care, since he works up to 60 hours per week. They answered his clarion call, immediately leaving their own home on the NSW mid-north coast to live with him in his home in Newcastle.[43] The paternal grandmother said in final submissions “I’ve stepped up to the mark because [the father] was working full-time”.

    [42] Paternal grandmother’s affidavit, paras 12, 13, 43-45

    [43] Paternal grandmother’s affidavit, paras 6-8

36. The paternal grandmother arranged the child’s enrolment at a new school within a week of his detention by the father. The paternal grandparents have since been responsible for almost all family contact with his new school, his conveyance to and from school, supervision of his homework completion, his attendance at extra-curricular activities, his exchanges with the mother, and his consultations with doctors and other service providers.[44] The paternal grandmother’s proposal, made with the father’s support, for her to assume the role as the child’s residential carer exemplifies the extent to which the father delegated parental responsibility for the child to her.

    [44] Paternal grandmother’s affidavit, paras 17-25, 40; Family Report, paras 43-46, 63, 83

1. Some of the information furnished to the child’s school was false. The paternal grandparents falsely told school staff the father had the child in “protective custody” pursuant to Court order, pending assault charges being proffered against the mother and Mr C. There were no Court orders in existence other than the Federal Circuit Court orders which stipulated the child must live with the mother and an interim apprehended violence order that restricted the child’s interaction with only Mr C. They falsely told the school staff the child had been removed from the mother by the Department and/or police. They told school staff the mother had a personality disorder, which was false, even if they believed it to be true. They also instructed the school not to divulge information about the child to the mother, notwithstanding she still held parental responsibility for him.[45]

   [45] Family Report, pages 4-5 (para d), para 26, 62, 114; Exhibit ICL1 (page 32, 34, 35, 38, 39)

2. The father and paternal grandparents omitted from their affidavits any mention of the violent incident between the father and Ms G in April 2014 and also the father’s new domestic relationship with Ms H, who now lives in the household and who the child mentioned in passing to the Family Consultant.[46] It is possible those omissions were innocent oversights, but it is no less plausible the omissions were deliberately intended to avoid attention on another violent incident with a domestic partner and any concern about the father’s swift entry into yet another domestic relationship.

   [46] Family Report, para 84

3. The Family Consultant said of the paternal grandparents:[47]

   [They] are not considered to be protective of the child; they would appear to be enabling and excusing the father’s behaviour.

   [47] Family Report, para 132

4. It is unlikely the paternal grandparents really do have a comprehensive appreciation of the danger the father presents to the child’s psychological and cognitive health and, even if they did, it is unlikely they have the inclination to adequately control the father and properly supervise the child when in his care. Supervision of the child when visiting the father by either or both paternal grandparents is unlikely to be a sufficient bulwark against the risk of harm posed to the child by the father. They would not offer sufficient protection. As the Family Consultant said in cross-examination:

   There is a big difference between loving a child and acting protectively and in the best interests of the child

5. The father is not use to compliance with court orders or submission to authority. He was disqualified from driving until 2032 because he repeatedly ignored driving disqualifications imposed upon him by courts for traffic offences and was eventually declared a habitual offender.[48] In his dealings with the mother, he kept the child from her in October 2011[49] and again in March 2014, the latter occasion in direct contravention of existing parenting orders made in December 2012. The father also admitted he once kept the younger child he has with Ms F away from her, together with Ms F’s own child. He does what he wants when he wants.

   [48] Family Report, para 8; Exhibit ICL1 (page 47)

   [49] Family Report, para 13

6. In all probability, an order for the child to live with the paternal grandmother would be tantamount to an order that permits the father’s untrammelled involvement in the child’s life

Best interests of child – additional considerations

1. The child expressed to the Family Consultant that he loved living with the father,[50] implying he would like to maintain his residence with the father. He is really still too young to understand the implications of his expressed view, but in any case, none of the parties wanted his views to carry any weight. They all proposed he live with someone other than the father. The mother and Independent Children’s Lawyer wanted him to live with the mother, whereas the paternal grandmother and father wanted him to live with the paternal grandmother. The paternal grandparents intend to soon secure their own accommodation separately from the father, in which event the father will not be a member of their household.

   [50] Family Report, paras 81, 88

2. The father and paternal grandmother had few criticisms to make about the mother’s parenting capacity. The father described her as a “good mother” to the Family Consultant.[51] His grievance related to the risk of the child’s physical abuse in the mother’s household, which concern was not objectively vindicated by the evidence. The paternal grandmother’s principal complaint about the mother was her failure to utilise every opportunity to enable the child to spend time with her (s 60CC(3)(c)(ii)). She had a point. The mother’s adherence to the interim orders made in August 2014 was not as diligent as it should have been and, perplexingly, the mother chose not to allow the child to spend time with her at all following his return to live with the paternal family after a visit with her in the school holidays in late September 2015.

   [51] Family Report, para 47

3. The most probable explanation for that lack of diligence was offered by the Family Consultant. She said the mother presents with signs of depression and anxiety and she may qualify for a diagnosis of Post-Traumatic Stress Disorder by reason of her victimisation by the father’s family violence. She is unable to cope with having to deal with the father.[52] Although the paternal grandmother perceives herself to be a neutral intermediary, the mother perceives her to be merely the father’s emissary and she finds it little easier to deal with her. The mother said in cross-examination she could not cope with any more conflict and felt the need to withdraw until these proceedings were determined.

   [52] Family Report, para 139

4. The mother was pessimistic about her experience with the paternal family and the litigious process and was on the verge of capitulation.[53] The Family Consultant was concerned by her arousal, hypervigilance, and fragility,[54] but in cross-examination she said her opinion of the mother’s parenting capacity was not appreciably diminished by her recent withdrawal from compliance with the interim parenting orders.

   [53] Family Report, paras 34, 38, 71, 73, 77

   [54] Family Report, para 76

5. Unfortunately, the paternal grandparents lack the guile to appreciate the mother’s predicament. They think the mother is “quite happy for [the child] to be with his dad”.[55] They mistake her disconsolate resignation for voluntary consent. As the Family Consultant said in cross-examination, there is a power imbalance within the family. The paternal family has all the power and the mother simply submits to arrangements to avoid conflict.

   [55] Family Report, para 66

6. The paternal grandmother told the child’s school staff the child did not want to see the mother at all.[56] She also said in cross-examination that the child is apprehensive about visiting the mother and is very quiet when he initially returns to the paternal family. She did not wish to speculate on the reasons why, but the most obvious explanation is that the child is aware of the familial tension that surrounds him and is anxious about it when he is exchanged between the mother and paternal family, because that is when the tension is most prominent. He may also be worried about being interrogated by the paternal family on his return to them about whether he was subjected to any further physical abuse in the mother’s home.

   [56] Exhibit ICL1 (page 35)

7. An admission about the child’s anxiety at changeover times does not bode well for the long-term stability of the current arrangements. There was no reason to think the tension between the parties will abate, or that the child’s anxiety will lessen. Even if it does not escalate, the current level of tension and anxiety without relief will probably eventually result in the child’s resistance to spending any time with the mother. The paternal family, because of their lack of insight, would probably reason the child was sufficiently mature to make his own decision about that and they would accede to his resistance and cease sending him on visits with the mother. The paternal grandfather already thinks the current arrangements are “unworkable” and “detrimental” to the child.[57]

   [57] Paternal grandfather’s affidavit, para 12

8. While most of the evidence so far discussed justifies the child’s residence with the mother, there are some countervailing considerations.

9. First, his move to live with the mother on the outer fringe of Sydney would necessitate his change of school. That would be disadvantageous because, after an unsettling start to his school life, he has recently shown signs of settling in his current school. Nevertheless, the paternal grandparents told the Family Consultant “it might be worth thinking about [him] changing schools at some point”,[58] so they must not be entirely convinced about the virtues of his current school.

   [58] Family Report, para 63

10. Second, his move to live with the mother would deprive him of interaction with his younger half-sibling who spends time in the father’s household. Sibling relationships are important, but not determinative. If the child lives with the paternal grandmother, as the father proposes, his time with his paternal half-sibling will diminish anyway, and he will have little interaction with his maternal half-sibling who lives with the mother and Mr C.

11. Third, his move to live with the mother would cause his sufferance of grief and a sense of loss of the paternal family, which the Family Consultant acknowledged, though she prioritised the child’s emotional stability as more important.[59]

    [59] Family Report, para 141

12. Fourth, the mother suffers from a heart problem which requires corrective surgery within the next few months. The condition has deprived her of energy in recent times and will continue to do so until rectified. Until her recuperation from the surgery, she will be less able to care physically for her children and will be more heavily reliant upon domestic assistance from Mr C.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father has engaged in family violence (s 61DA(2)(b)).

2. The father should not have any parental responsibility for the child if the mother has any parental responsibility for him because they simply cannot communicate effectively. It is mystifying how the father could believe they are “able to communicate well about parenting matters”. Their inability to do so was the very reason the paternal grandparents took over the role of interaction with the mother at exchanges of the child.[60] The father said in cross-examination he refuses to speak directly to the mother because of the past allegations of misconduct she made against him. All communication between the mother and the paternal family is channelled through the paternal grandmother. Even so, the mother still wants to keep her residential address secret from the paternal family, such is her apprehension about them.

   [60] Family Report, para 49

3. The presumption of equal shared parental responsibility that ordinarily applies under the Act (s 61DA(1)) only applies to a child’s “parents”. There is no warrant for the paternal grandmother to share in the child’s parental responsibility unless he lives with her. In those circumstances, it would be absurd for her not to have some parental responsibility for him. But equally, it would be inapposite for her to acquire a share in his parental responsibility if he does not live with her. There would be no reason for it.

4. The allocation of parental responsibility for the child is therefore tied to the question of with whom he should live.

5. The child should live with the mother and she should have sole parental responsibility for him.

6. The factors that favour the child’s residence with the mother are:

   (a)The probable physical and psychological safety of the child in the mother’s home;

   (b)The probable inability of the paternal grandparents to adequately protect the child against the risk of his psychological harm through exposure to more family violence committed by the father;

   (c)The lack of insight demonstrated by the father and paternal grandparents about the stress suffered by the child trying to manage the present tension between the mother and paternal family;

   (d)The child’s probable loss of his relationship with the mother if he remains living with the paternal family;

   (e)The need for the child to live with better role models; and

   (f)The acquisition of a closer relationship with his younger maternal half-sibling;

7. Those factors carried greater weight than the following factors which favoured the child’s residence with the paternal grandmother:

   (a)The mother’s lack of commitment to the child, as demonstrated by her lax compliance with the interim parenting orders made in August 2014;

   (b)The mother’s fragile emotional state, which could compromise her parenting capacity;

   (c)The mother’s heart condition, which renders her less physically able until she has corrective surgery in the next few months;

   (d)The ability of the child to remain at his current school;

   (e)The consequent loss of contact with his younger paternal half-sibling; and

   (f)Avoidance of the grief and sense of loss of the paternal family he will undoubtedly experience if he was to move to live with the mother.

8. Having reached those conclusions about the child’s residence and the allocation of parental responsibility for him, the difficult question to be confronted is whether, and if so how, the child should spend time with the father and paternal grandparents.

9. For reasons already canvassed, it would only be feasible for the child to spend time with the father under professional supervision, but that would not be a satisfactory long-term arrangement. Even if it was only to occur infrequently, such as a few times per year, it would be problematic for the mother.

10. The paternal grandparents do not pose any individual risks of harm to the child, assuming the father’s exclusion, but if the child were to spend time with only them and not the father it would create problems for everyone. The child would want to know why he could not see the father and would want to do so. The paternal grandparents would feel compromised seeing the child in isolation from the father when they know of his desire to see the child and would be torn between compliance with the orders and acquiescence to the father and child’s desire to see one another, probably yielding to the latter. The father would feel embittered that he alone was excluded from the child’s life. The mother, who would need to continue exchanging the child with the paternal grandparents, would sense their anger at the father’s elimination from the child’s life and the seething anger would spoil any last vestige of goodwill between them. The Family Consultant said in cross-examination she did not think orders allowing the child to spend time with the paternal grandparents in isolation from the father would work. She was probably right.

11. Besides all of those complications, the mother simply could not indefinitely cope with orders that require her to ensure the child’s regular visits with the paternal grandparents. She plainly said so in cross-examination. That evidence was not contrived because, without forewarning of the issue, Mr C said in cross-examination he did not think the mother could cope with such orders either. The Family Consultant said nothing could be done to help the mother cope with orders to that effect.

12. The need for peace and tranquillity in the mother’s household after all the litigious tumult is a very important consideration (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; A & A (1998) 22 Fam LR 756 at 768-769; V & V [2001] FamCA 78 at [54]; H & K at [36]-[38]; H & R [2006] FamCA 878 at [44]-[53]). Without reprieve, the mother would most probably experience impairment of her parenting capacity, with consequent detriment to the child. That is further justification for virtual elimination of the paternal family from the child’s life, regardless of the sense of injustice they will feel. The father must know that elimination of a parent from a child’s life is sometimes necessary because, when he started this case in April 2014, that is what he proposed happen to the mother.

13. The orders do not restrain the parties from allowing the child to spend time with either the father or paternal grandparents. The mother will decide, as an incident of her exclusive parental responsibility for the child, if and how the child will ever spend time with them. It may be that, as he matures, the mother considers it appropriate to allow him some form of interaction with the members of the paternal family. If so, she should not feel constrained by an injunction.

14. However, to avoid frustration of the orders by the father and paternal grandmother, they are restrained from attending at or near to the mother’s home and the child’s school. The mother is at liberty to provide a copy of the orders to the principal of the child’s school, as the Family Consultant recommended.[61]

    [61] Family Report, page 5

15. The orders permit the father to obtain the child’s school reports and school photographs.

16. The orders also permit the father and paternal grandmother to correspond with the child in writing at times proximate to his birthday and Christmas, as was proposed by the Independent Children’s Lawyer, without objection by the mother. That will help the child retain a link with the paternal family and re-assure him they have not abandoned him.

17. The orders set out at the commencement of these reasons serve the child’s best interests.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 November 2015.

Associate: 

Date:  27 November 2015